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MARCH 28, 2013 ~ VBDIAZ
ARTURO M. DE CASTRO vs. JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT GLORIA
MACAPAGAL – ARROYO
G.R. No. 191002, March 17, 2010
FACTS: The compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010 occurs just days after the Commented [RM1]: Compulsory retirement of SJ Puno
coming presidential elections on May 10, 2010.
These cases trace their genesis to the controversy that has arisen from the forthcoming compulsory retirement of 2 conflicting provisions
Chief Justice Puno on May 17, 2010, or seven days after the presidential election. Under Section 4(1), in relation to
Section 9, Article VIII, that “vacancy shall be filled within ninety days from the occurrence thereof” from a “list of Sec 15 Art VII states: Two months immediately before the
at least three nominees prepared by the Judicial and Bar Council for every vacancy.” Also considering that Section next presidential elections and up to the end of his term, a
15, Article VII (Executive Department) of the Constitution prohibits the President or Acting President from making President or Acting President shall not make appointments,
appointments within two months immediately before the next presidential elections and up to the end of his term, except temporary appointments to executive positions when
continued vacancies therein will prejudice public service or
except temporary appointments to executive positions when continued vacancies therein will prejudice public endanger public safety.
service or endanger public safety.
The JBC, in its en banc meeting of January 18, 2010, unanimously agreed to start the process of filling up the Section 4 (1), Article VIII (Judicial Department), states:
position of Chief Justice. Section 4. (1). The Supreme Court shall be composed of a
Conformably with its existing practice, the JBC “automatically considered” for the position of Chief Justice the five Chief Justice and fourteen Associate Justices. It may sit en
most senior of the Associate Justices of the Court, namely: Associate Justice Antonio T. Carpio; Associate Justice banc or in its discretion, in division of three, five, or seven
Renato C. Corona; Associate Justice Conchita Carpio Morales; Associate Justice Presbitero J. Velasco, Jr.; and Members. Any vacancy shall be filled within ninety days
Associate Justice Antonio Eduardo B. Nachura. However, the last two declined their nomination through letters from the occurrence thereof.
dated January 18, 2010 and January 25, 2010, respectively.
Case:
The OSG contends that the incumbent President may appoint the next Chief Justice, because the prohibition under
one side holds that the incumbent President is prohibited
Section 15, Article VII of the Constitution does not apply to appointments in the Supreme Court. It argues that any from making appointments within two months immediately
vacancy in the Supreme Court must be filled within 90 days from its occurrence, pursuant to Section 4(1), Article before the coming presidential elections and until... the end
VIII of the Constitution; that had the framers intended the prohibition to apply to Supreme Court appointments, they of her term of office as President on June 30, 2010, while the
could have easily expressly stated so in the Constitution, which explains why the prohibition found in Article VII other insists that the prohibition applies only to appointments
(Executive Department) was not written in Article VIII (Judicial Department); and that the framers also incorporated to executive positions that may influence the election and,
in Article VIII ample restrictions or limitations on the President’s power to appoint members of the Supreme Court anyway, paramount national interest justifies the
to ensure its independence from “political vicissitudes” and its “insulation from political pressures,” such as appointment of a Chief Justice... during the election ban - has
stringent qualifications for the positions, the establishment of the JBC, the specified period within which the impelled the JBC to defer the decision to whom to send its
list of at least three nominees, whether to the incumbent
President shall appoint a Supreme Court Justice.
President or to her successor
A part of the question to be reviewed by the Court is whether the JBC properly initiated the process, there being an
insistence from some of the oppositors-intervenors that the JBC could only do so once the vacancy has occurred Commented [RM2]: Prohibition to president’s
(that is, after May 17, 2010). Another part is, of course, whether the JBC may resume its process until the short list appointment
is prepared, in view of the provision of Section 4(1), Article VIII, which unqualifiedly requires the President to
Commented [RM3]: One of the contention in the
appoint one from the short list to fill the vacancy in the Supreme Court (be it the Chief Justice or an Associate
appointment
Justice) within 90 days from the occurrence of the vacancy.
ISSUE: Whether the incumbent President can appoint the successor of Chief Justice Puno upon his retirement.
HELD:
Prohibition under Section 15, Article VII does not apply to appointments to fill a vacancy in the Supreme Court or to
other appointments to the Judiciary.
Two constitutional provisions are seemingly in conflict.
The first, Section 15, Article VII (Executive Department), provides: Section 15. Two months immediately before the
next presidential elections and up to the end of his term, a President or Acting President shall not make
appointments, except temporary appointments to executive positions when continued vacancies therein will
prejudice public service or endanger public safety.
The other, Section 4 (1), Article VIII (Judicial Department), states: Section 4. (1). The Supreme Court shall be
composed of a Chief Justice and fourteen Associate Justices. It may sit en banc or in its discretion, in division of
three, five, or seven Members. Any vacancy shall be filled within ninety days from the occurrence thereof.
Had the framers intended to extend the prohibition contained in Section 15, Article VII to the appointment of
Members of the Supreme Court, they could have explicitly done so. They could not have ignored the meticulous
ordering of the provisions. They would have easily and surely written the prohibition made explicit in Section 15,
Article VII as being equally applicable to the appointment of Members of the Supreme Court in Article VIII itself,
most likely in Section 4 (1), Article VIII. That such specification was not done only reveals that the prohibition
against the President or Acting President making appointments within two months before the next presidential
elections and up to the end of the President’s or Acting President’s term does not refer to the Members of the
Supreme Court.
Section 14, Section 15, and Section 16 are obviously of the same character, in that they affect the power of the
President to appoint. The fact that Section 14 and Section 16 refer only to appointments within the Executive
Department renders conclusive that Section 15 also applies only to the Executive Department. This conclusion is
consistent with the rule that every part of the statute must be interpreted with reference to the context, i.e. that every
part must be considered together with the other parts, and kept subservient to the general intent of the whole
enactment. It is absurd to assume that the framers deliberately situated Section 15 between Section 14 and Section
16, if they intended Section 15 to cover all kinds of presidential appointments. If that was their intention in respect
of appointments to the Judiciary, the framers, if only to be clear, would have easily and surely inserted a similar
prohibition in Article VIII, most likely within Section 4 (1) thereof.
Facts:
In G.R. No. 191002, De Castro submits that the conflicting opinions on the issue expressed by legal luminaries - one
side holds that the incumbent President is prohibited from making appointments within two months immediately
before the coming presidential elections and until... the end of her term of office as President on June 30, 2010,
while the other insists that the prohibition applies only to appointments to executive positions that may influence the
election and, anyway, paramount national interest justifies the appointment of a Chief Justice... during the election
ban - has impelled the JBC to defer the decision to whom to send its list of at least three nominees, whether to the
incumbent President or to her successor.[8] He opines that the JBC is thereby arrogating unto itself "the judicial...
function that is not conferred upon it by the Constitution," which has limited it to the task of recommending
appointees to the Judiciary, but has not empowered it to "finally resolve constitutional questions, which is the power
vested only in the Supreme Court under the Constitution." As such, he contends that the JBC acted with grave abuse Commented [RM4]: SC lang ang may power na
of discretion in deferring the submission of the list of nominees to the President; and that a "final and definitive magdecide about the constitutional questions
resolution of the constitutional questions raised above would diffuse (sic) the... tension in the legal community that
would go a long way to keep and maintain stability in the judiciary and the political system."
Intervenors Tan, Ubano, Boiser, Corvera, NULP, BAYAN et al., and Bello et al. oppose the insistence that
Valenzuela recognizes the possibility that the President may appoint the next Chief Justice if exigent circumstances
warrant the appointment, because... that recognition is obiter dictum; and aver that the absence of a Chief Justice or Commented [RM5]: Words of an opinion entirely
even an Associate Justice does not cause epic damage or absolute disruption or paralysis in the operations of the unnecessary for the decision of the case
Judiciary. They insist that even without the successor of Chief Justice Puno being appointed by the incumbent
President, the Court is allowed to sit and adjudge en banc or in divisions of three, five or seven members at its
discretion; that a full membership of the Court is not necessary; that petitioner De Castro's fears are unfounded and...
baseless, being based on a mere possibility, the occurrence of which is entirely unsure; that it is not in the national
interest to have a Chief Justice whose appointment is unconstitutional and, therefore, void; and that such a situation
will create a crisis in the judicial... system and will worsen an already vulnerable political situation.
Intervenors Tan, Ubano, WTLOP, Bello et al., IBP Dacao del Sur, Corvera, and Boiser regard De Castro's argument
that a permanent Chief Justice is imperative for the stability of the judicial system and the political situation in the
country when the election-related... questions reach the Court as false, because there is an existing law on filling the
void brought about by a vacancy in the office of Chief Justice; that the law is Section 12 of the Judiciary Act of
1948, which has not been repealed by Batas Pambansa Blg. 129 or... any other law; that a temporary or an acting Commented [RM6]: Law to find the ruling for CJ vacancy
Chief Justice is not anathema to judicial independence; that the designation of an acting Chief Justice is not only
provided for by law, but is also dictated by practical necessity; that the practice was intended to be enshrined in... the
1987 Constitution, but the Commissioners decided not to write it in the Constitution on account of the settled
practice; that the practice was followed under the 1987 Constitution, when, in 1992, at the end of the term of Chief
Justice Marcelo B. Fernan, Associate Justice Andres Narvasa assumed the position as Acting Chief Justice prior to
his official appointment as Chief Justice; that said filling up of a vacancy in the office of the Chief Justice was
acknowledged and even used by analogy in the case of the vacancy of the Chairman of the Commission on
Elections, per Brillantes v. Yorac, 192 SCRA 358; and that the history of the Supreme Court has shown that this rule
of succession has been repeatedly observed and has become a part of its tradition.
Issues:
Can current president appoint new CJ even if law tells us that the deadline for
appointments should be two months before elections?
May the incumbent President... appoint his successor, considering that Section 15, Article VII (Executive
Department) of the Constitution prohibits the President or Acting President from making appointments within two
months immediately before the next presidential elections and up to the end of his... term, except temporary
appointments to executive positions when continued vacancies therein will prejudice public service or endanger
public safety?
What is the relevance of Section 4 (1), Article VIII (Judicial Department) of the Constitution, which provides that
any... vacancy in the Supreme Court shall be filled within 90 days from the occurrence thereof, to the matter of the
appointment of his successor?
May the Judicial and Bar Council (JBC) resume the process of screening the candidates nominated or being
considered to succeed Chief
Justice Puno, and submit the list of nominees to the incumbent President even during the period of the prohibition
under Section 15, Article VII? Does mandamus lie to compel the submission of the shortlist of nominees by the
JBC?... whether the incumbent President can appoint the next Chief Justice or not
Mandamus shall issue when any tribunal, corporation, board, officer or person unlawfully neglects the performance
of an act that the law specifically enjoins as a duty resulting from an office, trust, or station.[86] It is proper when
the act against... which it is directed is one addressed to the discretion of the tribunal or officer. Mandamus is not
available to direct the exercise of a judgment or discretion in a particular way.[87]
Ruling:
The issues before us are of transcendental importance to the people as a whole, and to the petitioners in... particular.
Indeed, the issues affect everyone (including the petitioners), regardless of one's personal interest in life, because
they concern that great doubt about the authority of the incumbent President to appoint not only the successor of the
retiring incumbent Chief Justice, but also others who may serve in the Judiciary, which already suffers from a far too
great number of vacancies in the ranks of trial judges throughout the country.
We hold that the petitions set forth an actual case or controversy that is ripe for judicial determination. The reality is
that the JBC already commenced the proceedings for the selection of the nominees to be included in a short list to be
submitted to the President for... consideration of which of them will succeed Chief Justice Puno as the next Chief
Justice.
In the consolidated petitions, the petitioners, with the exception of Soriano, Tolentino and Inting, submit that the
incumbent President can appoint the successor of Chief Justice Puno upon his retirement on May 17, 2010, on the
ground that the prohibition against presidential... appointments under Section 15, Article VII does not extend to
appointments in the Judiciary.
The Court agrees with the submission.
Although Valenzuela[67] came to hold that the prohibition covered even judicial appointments, it cannot be disputed
that the Valenzuela dictum did not firmly rest on the deliberations of the Constitutional Commission. Thereby, the
confirmation... made to the JBC by then Senior Associate Justice Florenz D. Regalado of this Court, a former
member of the Constitutional Commission, about the prohibition not being intended to apply to the appointments to
the Judiciary, which confirmation Valenzuela even expressly... mentioned, should prevail.
However, the reference to the records of the Constitutional Commission did not advance or support the result in
Valenzuela. Far to the contrary, the records disclosed the express intent of the framers to enshrine in the
Constitution, upon the initiative of Commissioner
Eulogio Lerum, "a command [to the President] to fill up any vacancy therein within 90 days from its occurrence,"
which even Valenzuela conceded.[69] The exchanges during deliberations of the Constitutional Commission on
October 8, 1986 further show... that the filling of a vacancy in the Supreme Court within the 90-day period was a
true mandate for the President, viz:
Moreover, the usage in Section 4(1), Article VIII of the word shall - an imperative, operating to impose a duty that
may be enforced[71] - should not be disregarded. Thereby, Sections 4(1) imposes on the President the imperative
duty to... make an appointment of a Member of the Supreme Court within 90 days from the occurrence of the
vacancy. The failure by the President to do so will be a clear disobedience to the Constitution.
Such appointments, so long as they are "few and so spaced as to afford some assurance of deliberate action and...
careful consideration of the need for the appointment and the appointee's qualifications," can be made by the
outgoing President.
Fifth. To hold like the Court did in Valenzuela that Section 15 extends to appointments to the Judiciary further
undermines the intent of the Constitution of ensuring the independence of the Judicial Department from the
Executive and Legislative Departments.
Such a holding will tie the Judiciary and the Supreme Court to the fortunes or misfortunes of political leaders vying
for the Presidency in a presidential election. Consequently, the wisdom of having the new President, instead of the
current incumbent President, appoint the next
Chief Justice is itself suspect, and cannot ensure judicial independence, because the appointee can also become
beholden to the appointing authority. In contrast, the appointment by the incumbent President does not run the same
risk of compromising judicial independence,... precisely because her term will end by June 30, 2010.
Mandamus shall issue when any tribunal, corporation, board, officer or person unlawfully neglects the performance
of an act that the law specifically enjoins as a duty resulting from an office, trust, or station.[86] It is proper when
the act against... which it is directed is one addressed to the discretion of the tribunal or officer. Mandamus is not
available to direct the exercise of a judgment or discretion in a particular way.[87]
For the JBC to do so will be unconscionable on its part, considering that it will... thereby effectively and illegally
deprive the President of the ample time granted under the Constitution to reflect on the qualifications of the
nominees named in the list of the JBC before making the appointment.
The distinction between a ministerial act and a discretionary one has been delineated in the following manner:
The distinction between a ministerial and discretionary act is well delineated. A purely ministerial act or duty is one
which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of
a legal authority,... without regard to or the exercise of his own judgment upon the propriety or impropriety of the
act done. If the law imposes a duty upon a public officer and gives him the right to decide how or when the duty
shall be performed, such duty is discretionary and not... ministerial. The duty is ministerial only when the discharge
of the same requires neither the exercise of official discretion or judgment.[89]
Facts:
Petitioners Arturo M. De Castro and John G. Peralta respectively commenced... as special civil actions for certiorari
and mandamus, praying that the JBC be compelled to submit to the... incumbent President the list of at least three
nominees for the position of the next Chief Justice.
Jaime N. Soriano, via his petition for prohibition, proposes to prevent the JBC... the Philippine Constitution
Association (PHILCONSA) wants the JBC to submit its list of nominees for the position of Chief Justice...
petitioner Estelito M. Mendoza, a former Solicitor General, seeks a ruling from the Court for the guidance of the
JBC on whether Section 15, Article VII applies to appointments to the Judiciary.
Integrated Bar of the Philippines (IBP)... want to enjoin and restrain the JBC from submitting a list of nominees for
the position of Chief Justice to the President for appointment
De Castro submits that... the JBC is thereby arrogating unto itself "the judicial... function that is not conferred upon
it by the Constitution," which has limited it to the task of recommending appointees to the Judiciary... but has not
empowered it to "finally resolve constitutional questions, which is the power vested only in the Supreme Court
under the
Constitution."
Soriano offers the view that the... appointing authority for the position of Chief Justice is the Supreme Court itself,
the President's authority being limited to the appointment of the Members of the Supreme Court.
the controversy that has arisen from the forthcoming compulsory retirement of Chief Justice Puno on May 17, 2010,
or seven days after the presidential election. Under Section 4(1), in relation to Section 9, Article VIII, that
"vacancy... shall be filled within ninety days from the occurrence thereof" from a "list of at least three nominees
prepared by the Judicial and Bar Council for every vacancy."
The JBC, in its en banc meeting... unanimously agreed to start the process of filling up the position of Chief Justice
In its meeting of February 8, 2010, the JBC resolved to proceed to the next step of announcing the names of the
following candidates
Associate
Justice Carpio, Associate Justice Corona, Associate Justice Carpio Morales, Associate Justice Leonardo-De Castro,
Associate Justice Brion, and Associate Justice Sandoval. The announcement came out in the Philippine Daily
Inquirer and The Philippine Star... issues
Issues:
whether the incumbent President can appoint the successor of Chief Justice Puno upon his retirement.
Ruling:
the incumbent President can appoint the successor of Chief Justice Puno upon his retirement on May 17, 2010, on
the ground that the prohibition against presidential... appointments under Section 15, Article VII does not extend to
appointments in the Judiciary.
Section 9 states that the appointment of Supreme Court Justices can only be made by the President upon the
submission of a list of at least three nominees by the JBC; Section 4(1) of the Article mandates the President to fill
the vacancy within 90 days from... the occurrence of the vacancy.
Consequently, prohibiting the incumbent President from appointing a Chief Justice on the premise that Section 15,
Article VII extends to appointments in the Judiciary cannot be sustained.
Section 15, Article VII does not apply as well to all other appointments in the Judiciary
Section 15, Article VII is directed against two types of appointments: (1) those made for buying votes and (2) those
made for partisan considerations.
Such appointments, so long as they are "few and so spaced as to afford some assurance of deliberate action and...
careful consideration of the need for the appointment and the appointee's qualifications," can be made by the Commented [RM7]: Basta hindi sya palagian na
outgoing President. occurence
The exception allows only the making of temporary appointments... to executive positions when continued
vacancies will prejudice public service or endanger public safety.
the Constitutional Commission confined the prohibition to appointments made in the Executive Department.
The framers did not need to extend the prohibition to appointments in... the Judiciary, because their establishment of
the JBC and their subjecting the nomination and screening of candidates for judicial positions to the unhurried and
deliberate prior process of the JBC ensured that there would no longer be midnight appointments to the
Judiciary.
hen Senior Associate Justice Regalado... assured that "on the basis of the (Constitutional) Commission's records, the
election ban had no application to appointments to the Court of
Appeals."
Section 14 speaks of the power of the succeeding President to revoke appointments made by an Acting
President,[81] and evidently refers only to appointments in the Executive Department. It has no application to
appointments in the Judiciary, because... temporary or acting appointments can only undermine the independence of
the Judiciary due to their being revocable at will.
Also, there is no law in the books that... authorizes the revocation of appointments in the Judiciary.
Sections 4(1) and 9 of Article VIII shows that the Supreme Court is composed of a Chief Justice and 14 Associate
Justices, who all shall be appointed by the President from a list of at least three nominees prepared by the JBC for
every vacancy, which appointments... require no confirmation by the Commission on Appointments.
Principles:
Valenzuela was weak, because it relied on interpretation to determine the intent of the framers rather than on the
deliberations of the
Constitutional Commission.
FACTS:
This case is based on multiple cases field with dealt with the controversy that has arisen from the forthcoming
compulsory requirement of Chief Justice Puno on May 17, 2010 or seven days after the presidential election. On
December 22, 2009, Congressman Matias V. Defensor, an ex officio member of the JBC, addressed a letter to the
JBC, requesting that the process for nominations to the office of the Chief Justice be commenced immediately. In its
January 18, 2010 meeting en banc, the JBC passed a resolution which stated that they have unanimously agreed to
start the process of filling up the position of Chief Justice to be vacated on May 17, 2010 upon the retirement of the
incumbent Chief Justice. As a result, the JBC opened the position of Chief Justice for application or recommendation,
and published for that purpose its announcement in the Philippine Daily Inquirer and the Philippine Star. In its meeting
of February 8, 2010, the JBC resolved to proceed to the next step of announcing the names of the following candidates
to invite to the public to file their sworn complaint, written report, or opposition, if any, not later than February 22,
2010. Although it has already begun the process for the filling of the position of Chief Justice Puno in accordance
with its rules, the JBC is not yet decided on when to submit to the President its list of nominees for the position due
to the controversy in this case being unresolved. The compiled cases which led to this case and the petitions of Commented [RM8]: Reservation of JBC
intervenors called for either the prohibition of the JBC to pass the shortlist, mandamus for the JBC to pass the shortlist,
or that the act of appointing the next Chief Justice by GMA is a midnight appointment. A precedent frequently cited
by the parties is the In Re Appointments Dated March 30, 1998 of Hon. Mateo A. Valenzuela and Hon. Placido B.
Vallarta as Judges of the RTC of Branch 62, Bago City and of Branch 24, Cabanatuan City, respectively, shortly Commented [RM9]: Precedent cases
referred to here as the Valenzuela case, by which the Court held that Section 15, Article VII prohibited the exercise
by the President of the power to appoint to judicial positi ons during the period therein fixed.
ISSUES:
1. Whether or not the petitioners have legal standing.
2. Whether or not there is justiciable controversy that is ripe for judicial determination.
3. Whether or not the incumbent President can appoint the next Chief Justice.
4. Whether or not mandamus and prohibition will lie to compel the submission of the shortlist of nominees by the
JBC.
HELD:
1.Petitioners have legal standing because such requirement for this case was waived by the Court. Legal standing is a
peculiar concept in constitutional law because in some cases, suits are not brought by parties who have been personally
injured by the operation of a law or any other government act but by concerned citizens, taxpayers or voters who
actually sue in the public interest.” But even if, strictly speaking, the petitioners “are not covered by the definition, it
is still within the wide discretion of the Court to waive the requirement and so remove the impediment to its addressing
and resolving the serious constitutional questions raised.”
2. There is a justiciable issue. The court holds that the petitions set forth an actual case or controversy that is ripe for
judicial determination. The reality is that the JBC already commenced the proceedings for the selection of the
nominees to be included in a short list to be submitted to the President for consideration of which of them will succeed
Chief Justice Puno as the next Chief Justice. Although the position is not yet vacant, the fact that the JBC began the
process of nomination pursuant to its rules and practices, although it has yet to decide whether to submit the list of
nominees to the incumbent outgoing President or to the next President, makes the situation ripe for judicial
determination, because the next steps are the public interview of the candidates, the preparation of the short list of
candidates, and the “interview of constitutional experts, as may be needed.” The resolution of the controversy will Commented [RM10]: Ripe for judicial determination
surely settle – with finality – the nagging questions that are preventing the JBC from moving on with the process that
it already began, or that are reasons persuading the JBC to desist from the rest of the process.
3.Prohibition under section 15, Article VII does not apply to appointments to fill a vacancy in the Supreme Court or
to other appointments to the judiciary. The records of the deliberations of the Constitutional Commission reveal that
the framers devoted time to meticulously drafting, styling, and arranging the Constitution. Such meticulousness
indicates that the organization and arrangement of the provisions of the Constitution were not arbitrarily or
whimsically done by the framers, but purposely made to reflect their intention and manifest their vision of what the
Constitution should contain. As can be seen, Article VII is devoted to the Executive Department, and, among others,
it lists the powers vested by the Constitution in the President. The presidential power of appointment is dealt with in
Sections 14, 15 and 16 of the Article. Had the framers intended to extend the prohibition contained in Section 15,
Article VII to the appointment of Members of the Supreme Court, they could have explicitly done so. They could not
have ignored the meticulous ordering of the provisions. They would have easily and surely written the prohibition
made explicit in Section 15, Article VII as being equally applicable to the appointment of Members of the Supreme
Court in Article VIII itself, most likely in Section 4 (1), Article VIII.
4.Writ of mandamus does not lie against the JBC. Mandamus shall issue when any tribunal, corporation, board, officer
or person unlawfully neglects the performance of an act that the law specifically enjoins as a duty resulting from an
office, trust, or station. It is proper when the act against which it is directed is one addressed to the discretion of the
tribunal or officer. Mandamus is not available to direct the exercise of a judgment or discretion in a particular way. For
mandamus to lie, the following requisites must be complied with: (a) the plaintiff has a clear legal right to the act
demanded; (b) it must be the duty of the defendant to perform the act, because it is mandated by law; (c) the defendant
unlawfully neglects the performance of the duty enjoined by law; (d) the act to be performed is ministerial, not
discretionary; and (e) there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law. Commented [RM11]: Requisites for mandamus
Facts:
The compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010 occurs just days after the coming
presidential elections on May 10, 2010. Even before the event actually happens, it is giving rise to many legal
dilemmas.
This dilemma is rooted in consideration of Section 15, Art VII of the Constitution prohibiting the President or Acting
President from making appointments within two months immediately before the next presidential election and up to
the end of his term, except when temporary appointments to executive positions when continued vacancies will
prejudice public service or endanger public safety.
However, Section 4 (1), Art VIII of the Constitution also provides that any vacancy in the Supreme Court shall be
filled within 90 days from occurrence. The question leads to who should appoint the next Chief Justice and may the
JBC resume the process of screening candidates should the incumbent president not prohibited to do so. May a
mandamus lie to compel the submission of JBC’s nominees to the president?
This issue at hand truly is impressed with transcendental importance to the Nation.
A lot of petitions were received by the court from a mandamus to prohibitions. We limit our discussion with GR
191002 for brevity.
Issues:
Whether or not the case at bar is an actual controversy.
Whether or not the petitioners have legal standing to file said petition.
Ratio Decidendi:
The court held the case being premature because the Judicial and Bar Council has until May 17, 2010 at the least
within which to submit the list of nominees to the President to fill the vacancy created by the compulsory retirement
of Chief Justice Puno.
The petitioner here asserts his right as citizen filing the petition on behalf of the public who are directly affected by
the issue of the appointment. The question raised before the court is in fact of transcendental importance. The court
dispels all doubt to remove any obstacle or obstruction to the resolution of the essential issue squarely presented.
Standing is a peculiar concept to constitutional law because in some cases, suits are not brought by parties who have
been personally injured by the operation of law or any other government act but by concerned citizens, taxpayers or
voters who actually sue in the public interest.
The court dismissed the petitions for certiorari and mandamus in GR 191002 and GR 191149 and the petition for
mandamus in GR no. 191057 for being premature; dismissal of the petitions for prohibition in GR 191032 and GR
191342 for lack of merit; and grants the in AM No. 10-2-5-SC and accordingly directs the JBC to: resume proceedings
for the nomination of candidates, prepare short list of nominees for the said position, submit to the incumbent President
the short list of nominees, and to continue proceedings for the nomination of candidates to fill other vacanci es in the
Judiciary and submit to the President the short list of nominees corresponding thereto in accordance with this decision.
FACTS: The Court Dismisses the petitions for certiorari and mandamus in G.R. No. 191002 and G.R. No.
191149, and the petition for mandamus in G.R. No. 191057 for being premature.
To summarize the arguments and submissions of the various motions for reconsideration, in the
aforegiven order:
1. The consolidated petitions should have been dismissed for prematurity, because the JBC has not yet
decided at the time the petitions were filed whether the incumbent President has the power to appoint the
new Chief Justice, and because the JBC, having yet to interview the candidates, has not submitted a short
list to the President.
2. The statement in the decision that there is a doubt on whether a JBC short list is necessary for the
President to appoint a Chief Justice should be struck down as bereft of constitutional and legal basis. The
statement undermines the independence of the JBC.
3. The JBC will abide by the final decision of the Court, but in accord with its constitutional mandate and
its implementing rules and regulations.
For his part, petitioner Estelito P. Mendoza (A.M. No. 10-2-5-SC) submits his comment even if the OSG
and the JBC were the only ones the Court has required to do so. He states that the motions for
reconsideration were directed at the administrative matter he initiated and which the Court resolved. His
comment asserts:
1. The grounds of the motions for reconsideration were already resolved by the decision and the separate
opinion.
2. The administrative matter he brought invoked the Courts power of supervision over the JBC as
provided by Section 8(1), Article VIII of the Constitution, as distinguished from the Courts adjudicatory
power under Section 1, Article VIII. In the former, the requisites for judicial review are not required,
which was why Valenzuela was docketed as an administrative matter. Considering that the JBC itself has
yet to take a position on when to submit the short list to the proper appointing authority, it has effectively
solicited the exercise by the Court of its power of supervision over the JBC.
3. To apply Section 15, Article VII to Section 4(1) and Section 9, Article VIII is to amend the Constitution.
4. The portions of the deliberations of the Constitutional Commission quoted in the dissent of Justice
Carpio Morales, as well as in some of the motions for reconsideration do not refer to either Section 15,
Article VII or Section 4(1), Article VIII, but to Section 13, Article VII (on nepotism).
It deny the motions for reconsideration for lack of merit, for all the matters being thereby raised and
argued, not being new, have all been resolved by the decision of March 17, 2010
Did the Constitutional Commission extend to the Judiciary the ban on presidential
appointments during the period stated in Section 15, Article VII?
HELD: Stare decisis derives its name from the Latin maxim stare decisis et non quieta movere, i.e., to
adhere to precedent and not to unsettle things that are settled. It simply means that a principle underlying
the decision in one case is deemed of imperative authority, controlling the decisions of like cases in the
same court and in lower courts within the same jurisdiction, unless and until the decision in question is
reversed or overruled by a court of competent authority. The decisions relied upon as precedents are
commonly those of appellate courts, because the decisions of the trial courts may be appealed to higher
courts and for that reason are probably not the best evidence of the rules of law laid down.
De Castro v. JBC
Facts:
This case is based on multiple cases field with dealt with the controversy that has arisen from the
forthcoming compulsory requirement of Chief Justice Puno on May 17, 2010 or seven days after the
presidential election. On December 22, 2009, Congressman Matias V. Defensor, an ex officio member of
the JBC, addressed a letter to the JBC, requesting that the process for nominations to the office of the
Chief Justice be commenced immediately.
In its January 18, 2010 meeting en banc, the JBC passed a resolution which stated that they have
unanimously agreed to start the process of filling up the position of Chief Justice to be vacated on May
17, 2010 upon the retirement of the incumbent Chief Justice.
As a result, the JBC opened the position of Chief Justice for application or recommendation, and
published for that purpose its announcement in the Philippine Daily Inquirer and the Philippine Star .
In its meeting of February 8, 2010, the JBC resolved to proceed to the next step of announcing the names
of the following candidates to invite to the public to file their sworn complaint, written report, or opposition,
if any, not later than February 22, 2010.
Although it has already begun the process for the filling of the position of Chief Justice Puno in
accordance with its rules, the JBC is not yet decided on when to submit to the President its list of
nominees for the position due to the controversy in this case being unresolved.
The compiled cases which led to this case and the petitions of intervenors called for either the prohibition
of the JBC to pass the shortlist, mandamus for the JBC to pass the shortlist, or that the act of appointing
the next Chief Justice by GMA is a midnight appointment.
A precedent frequently cited by the parties is the In Re Appointments Dated March 30, 1998 of Hon.
Mateo A. Valenzuela and Hon. Placido B. Vallarta as Judges of the RTC of Branch 62, Bago City and of
Branch 24, Cabanatuan City, respectively, shortly referred to here as the Valenzuela case, by which the
Court held that Section 15, Article VII prohibited the exercise by the President of the power to appoint to
judicial positions during the period therein fixed.
ISSUES
W/N mandamus and prohibition will lie to compel the submission of the shortlist of nominees by the JBC?
RULING
Petitioners have legal standing because such requirement for this case was waived by the Court.
Legal standing is a peculiar concept in constitutional law because in some cases, suits are not brought by
parties who have been personally injured by the operation of a law or any other government act but by
concerned citizens, taxpayers or voters who actually sue in the public interest.” But even if, strictly
speaking, the petitioners “are not covered by the definition, it is still within the wide discretion of the Court
to waive the requirement and so remove the impediment to its addressing and resolving the serious
constitutional questions raised.”
We hold that the petitions set forth an actual case or controversy that is ripe for judicial determination.
The reality is that the JBC already commenced the proceedings for the selection of the nominees to be
included in a short list to be submitted to the President for consideration of which of them will succeed
Chief Justice Puno as the next Chief Justice. Although the position is not yet vacant, the fact that the JBC
began the process of nomination pursuant to its rules and practices, although it has yet to decide whether
to submit the list of nominees to the incumbent outgoing President or to the next President, makes the
situation ripe for judicial determination, because the next steps are the public interview of the candidates,
the preparation of the short list of candidates, and the “interview of constitutional experts, as may be
needed.”
The resolution of the controversy will surely settle – with finality – the nagging questions that are
preventing the JBC from moving on with the process that it already began, or that are reasons persuading
the JBC to desist from the rest of the process.
PROHIBITION UNDER SECTION 15, ARTICLE VII DOES NOT APPLY TO APPOINTMENTS TO FILL A
VACANCY IN THE SUPREME COURT OR TO OTHER APPOINTMENST TO THE JUDICIARY.
Section 15. Two months immediately before the next presidential elections and up to the end of his term,
a President or Acting President shall not make appointments, except temporary appointments to
executive positions when continued vacancies therein will prejudice public service or endanger public
safety.
Section 4. (1). The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices.
It may sit en banc or in its discretion, in division of three, five, or seven Members. Any vacancy shall be
filled within ninety days from the occurrence thereof.
First. The records of the deliberations of the Constitutional Commission reveal that the framers devoted
time to meticulously drafting, styling, and arranging the Constitution. Such meticulousness indicates that
the organization and arrangement of the provisions of the Constitution were not arbitrarily or whimsically
done by the framers, but purposely made to reflect their intention and manifest their vision of what the
Constitution should contain.
The Constitution consists of 18 Articles, three of which embody the allocation of the awesome powers of
government among the three great departments, the Legislative (Article VI), the Executive (Article VII),
and the Judicial Departments (Article VIII). The arrangement was a true recognition of the principle of
separation of powers that underlies the political structure
As can be seen, Article VII is devoted to the Executive Department, and, among others, it lists the powers
vested by the Constitution in the President. The presidential power of appointment is dealt with in
Sections 14, 15 and 16 of the Article.
Had the framers intended to extend the prohibition contained in Section 15, Article VII to the appointment
of Members of the Supreme Court, they could have explicitly done so. They could not have ignored the
meticulous ordering of the provisions. They would have easily and surely written the prohibition made
explicit in Section 15, Article VII as being equally applicable to the appointment of Members of the
Supreme Court in Article VIII itself, most likely in Section 4 (1), Article VIII.
Although Valenzuela came to hold that the prohibition covered even judicial appointments, it cannot be
disputed that the Valenzuela dictum did not firmly rest on the deliberations of the Constitutional
Commission.
Moreover, the usage in Section 4(1), Article VIII of the word shall – an imperative, operating to impose a
duty that may be enforced – should not be disregarded. Thereby, Sections 4(1) imposes on the President
the imperative duty to make an appointment of a Member of the Supreme Court within 90 days from the
occurrence of the vacancy. The failure by the President to do so will be a clear disobedience to the
Constitution.
The 90-day limitation fixed in Section 4(1), Article VIII for the President to fill the vacancy in the Supreme
Court was undoubtedly a special provision to establish a definite mandate for the President as the
appointing power, and cannot be defeated by mere judicial interpretation in Valenzuela to the effect that
Section 15, Article VII prevailed because it was “couched in stronger negative language.”
Second. Section 15, Article VII does not apply as well to all other appointments in the Judiciary.
There is no question that one of the reasons underlying the adoption of Section 15 as part of Article VII
was to eliminate midnight appointments from being made by an outgoing Chief Executive. Given the
background and rationale for the prohibition in Section 15, Article VII, we have no doubt that the
Constitutional Commission confined the prohibition to appointments made in the Executive Department.
The framers did not need to extend the prohibition to appointments in the Judiciary, because their
establishment of the JBC and their subjecting the nomination and screening of candidates for judicial
positions to the unhurried and deliberate prior process of the JBC ensured that there would no longer be
midnight appointments to the Judiciary. Indeed, the creation of the JBC was precisely intended to de-
politicize the Judiciary by doing away with the intervention of the Commission on Appointments.
Third. As earlier stated, the non-applicability of Section 15, Article VII to appointments in the Judiciary
was confirmed by then Senior Associate Justice Regalado to the JBC itself when it met on March 9, 1998
to discuss the question raised by some sectors about the “constitutionality of xxx appointments” to the
Court of Appeals in light of the forthcoming presidential elections. He assured that “on the basis of the
(Constitutional) Commission’s records, the election ban had no application to appointments to the Court
of Appeals.” This confirmation was accepted by the JBC, which then submitted to the President for
consideration the nominations for the eight vacancies in the Court of Appeals.
Fourth. Of the 23 sections in Article VII, three (i.e., Section 14, Section15, and Section 16) concern the
appointing powers of the President.
Section 14, Section 15, and Section 16 are obviously of the same character, in that they affect the power
of the President to appoint. The fact that Section 14 and Section 16 refer only to appointments within the
Executive Department renders conclusive that Section 15 also applies only to the Executive Department.
This conclusion is consistent with the rule that every part of the statute must be interpreted with reference
to the context, i.e. that every part must be considered together with the other parts, and kept subservient
to the general intent of the whole enactment.
Fifth. To hold like the Court did in Valenzuela that Section 15 extends to appointments to the Judiciary
further undermines the intent of the Constitution of ensuring the independence of the Judicial Department
from the Executive and Legislative Departments. Such a holding will tie the Judiciary and the Supreme
Court to the fortunes or misfortunes of political leaders vying for the Presidency in a presidential election.
Consequently, the wisdom of having the new President, instead of the current incumbent President,
appoint the next Chief Justice is itself suspect, and cannot ensure judicial independence, because the
appointee can also become beholden to the appointing authority. In contrast, the appointment by the Commented [RM12]: Separation of powers; judicial
incumbent President does not run the same risk of compromising judicial independence, precisely independence
because her term will end by June 30, 2010.
Sixth. The argument has been raised to the effect that there will be no need for the incumbent President
to appoint during the prohibition period the successor of Chief Justice Puno within the context of Section
4 (1), Article VIII, because anyway there will still be about 45 days of the 90 days mandated in Section
4(1), Article VIII remaining.
The argument is flawed, because it is focused only on the coming vacancy occurring from Chief Justice
Puno’s retirement by May 17, 2010. It ignores the need to apply Section 4(1) to every situation of a
vacancy in the Supreme Court.
Section 4 (3), Article VII requires the regular elections to be held on the second Monday of May, letting
the elections fall on May 8, at the earliest, or May 14, at the latest. If the regular presidential elections are
held on May 8, the period of the prohibition is 115 days. If such elections are held on May 14, the period
of the prohibition is 109 days. Either period of the prohibition is longer than the full mandatory 90 -day
period to fill the vacancy in the Supreme Court. The result is that there are at least 19 occasions (i.e., the
difference between the shortest possible period of the ban of 109 days and the 90-day mandatory period
for appointments) in which the outgoing President would be in no position to comply with the
constitutional duty to fill up a vacancy in the Supreme Court. It is safe to assume that the framers of the
Constitution could not have intended such an absurdity.
Seventh. As a matter of fact, in an extreme case, we can even raise a doubt on whether a JBC list is
necessary at all for the President – any President – to appoint a Chief Justice if the appointee is to come
from the ranks of the sitting justices of the Supreme Court.
xxx. The Members of the Supreme Court xxx shall be appointed by the President from a list of at least
three nominees prepared by the Judicial and Bar Council for any vacancy. Such appointments need no
confirmation.
xxx
The provision clearly refers to an appointee coming into the Supreme Court from the outside, that is, a
non-member of the Court aspiring to become one. It speaks of candidates for the Supreme Court, not of
those who are already members or sitting justices of the Court, all of whom have previously been vetted
by the JBC.
Mandamus shall issue when any tribunal, corporation, board, officer or person unlawfully neglects the
performance of an act that the law specifically enjoins as a duty resulting from an office, trust, or station. It
is proper when the act against which it is directed is one addressed to the discretion of the tribunal or
officer. Mandamus is not available to direct the exercise of a judgment or discretion in a particular way.
For mandamus to lie, the following requisites must be complied with: (a) the plaintiff has a clear legal right
to the act demanded; (b) it must be the duty of the defendant to perform the act, because it is mandated
by law; (c) the defendant unlawfully neglects the performance of the duty enjoined by law; (d) the act to
be performed is ministerial, not discretionary; and (e) there is no appeal or any other plain, speedy and
adequate remedy in the ordinary course of law.
1
Art. VII, Sec 15 – Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President
shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public
service or endanger public safety.
2
Art. VIII, Sec 4 (1) – The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It may sit en banc or in its
discretion, in division of three, five, or seven Members. Any vacancy shall be filled within ninety days from the occurrence thereof.
o Candidates who accepted their nomination w/ condition: Antonio Carpio (SC), Conchita
Carpio Morales (SC)
o Declining their nominations: Atty. Henry Villarica, Atty. Gregorio Batiller
● In its meeting of Feb 8, the JBC resolved to proceed to the next step of announcing the names of
the ff candidate to invite the public to file their sworn complaint, written report or opposition if any:
Carpio, Corona, Carpio-Morales, Leonardo-De Castro, Brion, Sandoval
● Although the JBC has already begun the process for the filling of the position of Chief Justice Puno
in accordance with its rules, the JBC is not yet decided on when to submit to the President the list
of nominees for the position due to the controversy (whether this was covered by the Constitutional
prohibition prohibiting the President to make appointments two before the next Presidential
elections)
NOTE: Valenzuela Case
● In this case, the Court held that prohibitions found in Art VII Section 15 covered even judicial
appointments.
● Petitioners say that this case is valid precedent and must be applied in the instant case
ISSUE: WON the petitioners have locus standi (YES)
● Locus Standi; definition
o A right of appearance in a court of justice on a given question
o Such a personal stake in the outcome of the controversy
o Interest of a person assailing the constitutionality must be direct and personal. He must be able
to show that he sustained or is in imminent danger of sustaining some direct injury as a result
of its enforcement.
o DIRECT INJURY TEST – must have a personal and substantial interest in the case such that
he has sustained or will sustain a direct injury as a result
1. HOWEVER, the requirement of locus standi being a mere procedural technicality can be waived
by the Court in the exercise of its discretion. The Court may thus resolve certain issues due to their
far reaching implications even if petitioner has not standing to file the suit. The same is true when
cases had transcendental importance Commented [RM13]: Legal standing
2. The court rules that the petitioners have demonstrated adequate substantial interest in the outcome
of the controversy. The issues are of TRANSCENDENTAL IMPORTANCE.
a. The issues affect everyone regardless of one’s personal interest in life because they concern
that great doubt about the authority of the incumbent President to appoint not only the
successor of the retiring incumbent Chief Justice, but also others who may serve in the
Judiciary, which already suffers from a far too great number of vacancies in the ranks of trial
judges throughout the country
Art. VII, Sec 15 – Two months immediately before the next presidential elections and up to the
end of his term, a President or Acting President shall not make appointments, except temporary
appointments to executive positions when continued vacancies therein will prejudice public
service or endanger public safety.
Art. VIII, Sec 4 (1) – The Supreme Court shall be composed of a Chief Justice and fourteen
Associate Justices. It may sit en banc or in its discretion, in division of three, five, or seven
Members. Any vacancy shall be filled within ninety days from the occurrence thereof
❖ The Court held that the President can appoint the successor of Chief Justice Puno upon his
retirement on the ground that the prohibition against Presidential appointments under Art. VII,
Sec. 15 does not extend to appointments in the judiciary.
1. Had the framers intended to extend the prohibition contained in Art VII, Sec 15, to the appointment
of SC Members, they could have explicitly done so.
a. They would have easily and surely written the prohibition made explicit in Art VII Section 15 as
being equally applicable to the appointment of SC Members in Article VIII itself
b. The exchanges during the deliberations of the Constitutional Commission show that the filling
of a vacancy in the SC within the 90-day period was a true mandate of the President
o The usage of the word “shall” imposes on the President the imperative duty to make an
appointment within 90 days from the occurrence of the vacancy. The failure by the President
to so will be a clear disobedience to the Constitution.
c. Valenzuela Case (REVERSED!!!!)
o Reversed as it does not firmly rest on the deliberations of the Constitutional Commissions
o The 90-day limitation fixed in Art VIII Sec 4(1) establishes the definite mandate for the
President as appointing power and cannot be defeated by a mere judicial interpretation in
Valenzuela.
2. Art. VII Sec. 15 also does NOT apply to other appointments in the judiciary.
a. One of the reasons for the adoption of this Section 15 Art VII was to eliminate midnight
appointments from being made by an outgoing Chief Executive. (As enunciated in the Aytona
case)
b. The framers did not need to extend the prohibition to appointments in the Judiciary, because
their establishment of the JBC and their subjecting the nomination and screening of
candidates for judicial positions to the unhurried and deliberate prior process of the JBC
ensured that there would no longer be midnight appointments to the Judiciary.
c. Even candidates for judicial positions at any level backed by people influential with the
President could not always be assured of being recommended for the consideration of the
President, because they first had to undergo the vetting of the JBC and pass muster there.
d. Indeed, the creation of the JBC was precisely intended to de-politicize the Judiciary by doing
away with the intervention of the Commission on Appointments.
3. As was confirmed by Associate Justice Regalado, the election ban had no application to
appointments to the Court of Appeals on the basis of the Constitutional Commission’s records
(SIDE NOTE: bakit kaya Court of appeals nilagay nila? Hehehe. At wala inset of the record.)
4. Three sections in Article VII concern the appointing powers of the President (sections 14, 15 and
16). Section 14 and 16 refer only to appointments within the Executive Department. HENCE
Section 15 must also apply only to the Executive Department.
a. This conclusion is consistent with the rule that every part of the statue must be interpreted with
reference to the context
b. It is absurd to assume that the framers deliberately situated Section 15 between Section 14
and Section 16, if they intended Section 15 to cover all kinds of presidential appointments.
o If that was their intention in respect of appointments to the Judiciary, the framers, if only to
be clear, would have easily and surely inserted a similar prohibition in Article VIII, most likely
within Section 4 (1) thereof.
5. If section 15 extends to appointments to the judiciary, it would undermine the intent of the
Constitution of ensuing the independence of the judicial department from the executive and
legislative
6. If the regular presidential elections are held on May 8, the period of the prohibition is 115 days. If
such elections are held on May 14, the period of the prohibition is 109 days. Either period of the
prohibition is longer than the full mandatory 90-day period.
a. The result is that there are at least 19 occasions (i.e., the difference between the shortest
possible period of the ban of 109 days and the 90-day mandatory period for appointments) in
which the outgoing President would be in no position to comply with the constitutional duty to
fill up a vacancy in the Supreme Court. It is safe to assume that the framers of the Constitution
could not have intended such an absurdity.
ISSUE: WON the Judiciary Act of 1948 can still address the situation of having the next President appoint
the successor of Chief Justice (NO)
Section 12. Vacancy in Office of Chief Justice. — In case of a vacancy in the office of Chief
Justice of the Supreme Court or of his inability to perform the duties and powers of his office, they
shall devolve upon the Associate Justice who is first in precedence, until such disability is
removed, or another Chief Justice is appointed and duly qualified. This provision shall apply to
every Associate Justice who succeeds to the office of Chief Justice.
1. To rely on Sec12 f the Judiciary Act is to forestall the imperative need to appoint the next Chief
Justice the soonest.
a. Appointment by the President of the Chief Justice is never in an acting capacity. The framers
intended the position to be permanent and not temporary.
b. Sec 12 only responds to a rare situation in which the new Chief Justice is not yet appointed, or
in which the incumbent Chief Justice is unable to perform the duties and powers of the office.
It ought to be remembered, however, that it was enacted because the Chief Justice appointed
under the 1935 Constitution was subject to the confirmation of the Commission on
Appointments, and the confirmation process might take longer than expected
c. The lack of any appointed occupant of the office of Chief Justice harms the independence of
the Judiciary, because the Chief Justice is the head of the entire Judiciary. With the entire
Supreme Court being the Presidential Electoral Tribunal, the Chief Justice is the Chairman of
the Tribunal.
1.) Section 8(5)3 and Section 94, Article VIII mandate the JBC to submit a list of at least three nominees
to the President for every vacancy in the Judiciary. HOWEVER, Sec 4 (1) and Sec (9) of Art VIII
mandate the President to fill the vacancy in the Supreme Court within 90 days from the occurrence
of the vacancy, and within 90 days from the submission of the list, in the case of the lower courts.
3
Section 8(5) Art VIII – The Council shall have the principal function of recommending appointees to the Judiciary
4
Section 9, Art VIII – The Members of the Supreme Court and judges of lower courts shall be appointed by the President from a list of at least
three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation.
For the lower courts, the President shall issue the appointments within ninety days from the submission of the list
2.) The 90-day period is directed at the President, not at the JBC. Thus, the JBC should start the
process of selecting the candidates to fill the vacancy in the Supreme Court before the
occurrence of the vacancy
3.) The JBC has no discretion to submit the list to the President after the vacancy occurs, because
that shortens the 90-day period allowed by the Constitution for the President to make the
appointment.
4.) MINISTERIAL - The duty of the JBC to submit a list of nominees before the start of the President’s
mandatory 90-day period to appoint
DISCRETIONARY - selection of the candidates whose names will be in the list to be submitted
to the President
5.) For mandamus to lie against the JBC, therefore, there should be an unexplained delay on its
part in recommending nominees to the Judiciary, that is, in submitting the list to the President.
RULING:
1. Dismisses the petitions for certiorari and mandamus in G.R. No. 191002 and G.R. No. 191149, and
the petition for mandamus in G.R. No. 191057 for being premature;
2. Dismisses the petitions for prohibition in G.R. No. 191032 and 191342 for lack of merit;
3. Grants the petition in A.M. No. 10-2-5-SC and, accordingly, directs the Judicial and Bar Council:
(a) To resume its proceedings for the nomination of candidates to fill the vacancy to be created by the
compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010;
(b) To prepare the short list of nominees for the position of Chief Justice;
(c) To submit to the President short list of nominees for the position of CJ on or before May 17, 2010;
(d) To continue its proceedings for the nomination of candidates to fill other vacancies in the Judiciary
and submit to the President the short list of nominees corresponding thereto in accordance with this
decision.
Footnotes
1
In Re Appointments Dated March 30, 1998 of Hon. Mateo A. Valenzuela and Hon. Placido B.
Vallarta as Judges of the Regional Trial Court of Branch 62, Bago City and of Branch 24,
Cabanatuan City, respectively, A.M. No. 98-5-01-SC, November 9, 1998, 298 SCRA 408.
2
Price & Bitner, Effective Legal Research, Little, Brown & Co., New York (1962), § 9.7.
3
Caltex (Phil.), Inc. v. Palomar, No. L-19650, September 29, 1966, 18 SCRA 247
4
E.g., Dias, Jurisprudence, Butterworths, London, 1985, Fifth Edition, p. 127.
5
Limketkai Sons Milling, Inc. v. Court of Appeals, G.R. No. 118509, September 5, 1996, 261
SCRA 464.
6
See Calabresi, A Common Law for the Age of Statutes, Harvard University Press, p. 4 (1982)
and endnote 12 of the page, which essentially recounts that the strict application of the doctrine of
stare decisis is true only in a common-law jurisdiction like England (citing Wise, The Doctrine of
Stare Decisis, 21 Wayne Law Review, 1043, 1046-1047 (1975). Calabresi recalls that the English
House of Lords decided in 1898 (London Tramways Co. v. London County Council, A.C. 375)
that they could not alter precedents laid down by the House of Lords acting as the supreme court
in previous cases, but that such precedents could only be altered by an Act of Parliament, for to
do otherwise would mean that the courts would usurp legislative function; he mentions that in
1966, Lord Chancellor Gardiner announced in a Practice Statement a kind of general
memorandum from the court that while: "Their Lordships regard the use of precedent as an
indispensable foundation upon which to decide what is the law," they "nevertheless recognize
that too rigid adherence to precedent may lead to injustice in a particular case and also unduly
restrict the proper development of the law. They propose, therefore, to modify their present
practice and, while treating former decisions of this House as normally binding, to depart from a
previous decision when it appears right to do so." (Calabresi cites Leach, Revisionism in the
House of Lords: The Bastion of Rigid Stare Decisis Falls, 80 Harvard Law Review, 797 (1967).
7
Section 4 (2), Article VIII, provides:
xxx
(3) Cases or matters heard by a division shall be decided or resolved with the
concurrence of a majority of the Members who actually took part in the deliberations on
the issues in the case and voted thereon, and in no case, without the concurrence of at
least three of such Members. When the required number is not obtained, the case shall
be decided en banc; Provided, that no doctrine or principle of law laid down by the court
in a decision rendered en banc or in division may be modified or reversed except by the
court sitting en banc.
8
Record of the 1986 Constitutional Commission, Vol. 2, July 31, 1986, RCC No. 44. pp. 542-543.
9
Smith v. State, 66 Md. 215, 7 Atl. 49.
10
State ex rel Everding v. Simon, 20 Ore. 365, 26 Pac. 170.
DISSENTING OPINION
CARPIO MORALES, J.:
No compelling reason exists for the Court to deny a reconsideration of the assailed Decision. The various
motions for reconsideration raise hollering substantial arguments and legitimately nagging questions
which the Court must meet head on.
If this Court is to deserve or preserve its revered place not just in the hierarchy but also in history, passion
for reason demands the issuance of an extended and extensive resolution that confronts the ramifications
and repercussions of its assailed Decision. Only then can it offer an illumination that any self-respecting
student of the law clamors and any adherent of the law deserves. Otherwise, it takes the risk of reeking of
an objectionable air of supreme judicial arrogance.
It is thus imperative to settle the following issues and concerns:
Whether the incumbent President is constitutionally proscribed from appointing the successor of
Chief Justice Reynato S. Puno upon his retirement on May 17, 2010 until the ban ends at 12:00
noon of June 30, 2010
1. In interpreting the subject constitutional provisions, the Decision disregarded established
canons of statutory construction. Without explaining the inapplicability of each of the relevant
rules, the Decision immediately placed premium on the arrangement and ordering of provisions,
one of the weakest tools of construction, to arrive at its conclusion.
2. In reversing Valenzuela, the Decision held that the Valenzuela dictum did not firmly rest on
ConCom deliberations, yet it did not offer to cite a material ConCom deliberation. It instead opted
to rely on the memory of Justice Florenz Regalado which incidentally mentioned only the "Court
of Appeals." The Decision’s conclusion must rest on the strength of its own favorable Concom
deliberation, none of which to date has been cited.
3. Instead of choosing which constitutional provision carves out an exception from the other
provision, the most legally feasible interpretation (in the limited cases of temporary physical or
legal impossibility of compliance, as expounded in my Dissenting Opinion) is to consider the
appointments ban or other substantial obstacle as a temporary impossibility which excuses or
releases the constitutional obligation of the Office of the President for the duration of the ban or
obstacle.
In view of the temporary nature of the circumstance causing the impossibility of performance, the
outgoing President is released from non-fulfillment of the obligation to appoint, and the duty devolves
upon the new President. The delay in the fulfillment of the obligation becomes excusable, since the law
cannot exact compliance with what is impossible. The 90-day period within which to appoint a member of
the Court is thus suspended and the period could only start or resume to run when the temporary
obstacle disappears (i.e., after the period of the appointments ban; when there is already a quorum in the
JBC; or when there is already at least three applicants).
Whether the Judicial and Bar Council is obliged to submit to the President the shortlist of
nominees for the position of Chief Justice (or Justice of this Court) on or before the occurrence of
the vacancy.
1. The ruling in the Decision that obligates the JBC to submit the shortlist to the President on or
before the occurrence of the vacancy in the Court runs counter to the Concom
deliberations which explain that the 90-day period is allotted for both the nomination by the JBC
and the appointment by the President. In the move to increase the period to 90 days,
Commissioner Romulo stated that "[t]he sense of the Committee is that 60 days is awfully short
and that the [Judicial and Bar] Council, as well as the President, may have difficulties with that."
2. To require the JBC to submit to the President a shortlist of nominees on or before the
occurrence of vacancy in the Court leads to preposterous results. It bears reiterating that the
requirement is absurd when, inter alia, the vacancy is occasioned by the death of a member of
the Court, in which case the JBC could never anticipate the death of a Justice, and could never
submit a list to the President on or before the occurrence of vacancy.
3. The express allowance in the Constitution of a 90-day period of vacancy in the membership of
the Court rebuts any public policy argument on avoiding a vacuum of even a single day without a
duly appointed Chief Justice. Moreover, as pointed out in my Dissenting Opinion, the practice of
having an acting Chief Justice in the interregnum is provided for by law, confirmed by tradition,
and settled by jurisprudence to be an internal matter.
The Resolution of the majority, in denying the present Motions for Reconsideration, failed to rebut the
foregoing crucial matters.
I, therefore, maintain my dissent and vote to GRANT the Motions for Reconsideration of the Decision of
March 17, 2010 insofar as it holds that the incumbent President is not constitutionally proscribed from
appointing the successor of Chief Justice Reynato S. Puno upon his retirement on May 17, 2010 until the
ban ends at 12:00 noon of June 30, 2010 and that the Judicial and Bar Council is obliged to submit to the
President the shortlist of nominees for the position of Chief Justice on or before May 17, 2010.
CONCHITA CARPIO MORALES
Associate Justice
Footnotes
1
A.M. No. 98-5-01-SC, November 9, 1998, 298 SCRA 408. This A.M. involves the constitutional
validity of the appointment of two (2) RTC Judges on March 30, 1998 – a date that falls within the
supposed ban under Section 15, Article VII of the Constitution. We nullified the appointments.
2
G.R. No. 191002 and companion cases, promulgated on March 17, 2010.
3
Justices Diosdado M. Peralta, Mariano C. Del Castillo and Jose Catral Mendoza.
4
G.R. No. 191002, Petition for Certiorari and Mandamus.
5
G.R. No. 191149, Petition for Certiorari and Mandamus.
6
The JBC reiterates its position in its Comment (dated April 12, 2010) on the motions for
reconsideration that it is still acting on the preparation of the list of nominees and is set to
interview the nominees.
7
See, for instance, the motion for reconsideration of intervenor Alfonso Tan, Jr.
8
The docketed petitions were seven; the petitions-in-intervention were ten.
9
A prohibition petition seeks to stop the proceedings of a tribunal, corporation, board, officer or
person exercising judicial, quasi-judicial or ministerial functions if any of its act is without or in
excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction.
10
Separate Opinion, p. 16.
11
The JBC position states:
xxxx
Likewise, the JBC has yet to take a position on when to submit the shortlist to the proper
appointing authority, in light of Section 4(1), Article VIII of the Constitution, which provides
that vacancy in the Supreme Court shall be filled within ninety (90) days from the
occurrence thereof, Section 15, Article VII of the Constitution concerning the ban on
Presidential appointments "two (2) months immediately before the next presidential
elections and up to the end of his term" and Section 261(g), Article XXIII of the Omnibus
Election Code of the Philippines.
12. Since the Honorable Supreme Court is the final interpreter of the Constitution, the
JBC will be guided by its decision in these consolidated Petitions and Administrative
Matter. [Emphasis supplied.]
12
Mendoza Petition, pp. 5-6.
13
Separate Opinion, pp. 16-17.
14
Supra note 11.
15
Id. at 17.
16
Separate Opinion, pp. 19-22:
A first reality is that the JBC cannot, on its own due to lack of the proper authority,
determine the appropriate course of action to take under the Constitution. Its principal
function is to recommend appointees to the Judiciary and it has no authority to interpret
constitutional provisions, even those affecting its principal function; the authority to
undertake constitutional interpretation belongs to the courts alone.
A second reality is that the disputed constitutional provisions do not stand alone and
cannot be read independently of one another; the Constitution and its various provisions
have to be read and interpreted as one seamless whole, giving sufficient emphasis to
every aspect in accordance with the hierarchy of our constitutional values. The disputed
provisions should be read together and, as reflections of the will of the people, should be
given effect to the extent that they should be reconciled.
The third reality, closely related to the second, is that in resolving the coverage of the
election ban vis-à-vis the appointment of the Chief Justice and the Members of the Court,
provisions of the Constitution other than the disputed provisions must be taken into
account. In considering when and how to act, the JBC has to consider that:
1. The President has a term of six years which begins at noon of June
30 following the election, which implies that the outgoing President remains
President up to that time. (Section 4, Article VII). The President assumes office at
the beginning of his or her term, with provision for the situations where the
President fails to qualify or is unavailable at the beginning of his term (Section 7,
Article VII).
2. The Senators and the Congressmen begin their respective terms also
at midday of June 30(Sections 4 and 7, Article VI). The Congress convenes on
the 4th Monday of July for its regular session, but the President may call a
special session at any time. (Section 15, Article VI)
3. The Valenzuela case cited as authority for the position that the election ban
provision applies to the whole Judiciary, only decided the issue with respect to
lower court judges, specifically, those covered by Section 9, Article VIII of the
Constitution. Any reference to the filling up of vacancies in the Supreme Court
pursuant to Section 4(1), Article VIII constitutes obiter dictum as this issue was
not directly in issue and was not ruled upon.
These provisions and interpretation of the Valenzuela ruling – when read together with
disputed provisions, related with one another, and considered with the May 17, 2010
retirement of the current Chief Justice – bring into focus certain unavoidable realities, as
follows:
1. If the election ban would apply fully to the Supreme Court, the incumbent
President cannot appoint a Member of the Court beginning March 10, 2010, all
the way up to June 30, 2010.
2. The retirement of the incumbent Chief Justice – May 17, 2010 – falls within the
period of the election ban. (In an extreme example where the retirement of a
Member of the Court falls on or very close to the day the election ban starts, the
Office of the Solicitor General calculates in its Comment that the whole 90 days
given to the President to make appointment would be covered by the election
ban.)
3. Beginning May 17, 2010, the Chief Justice position would be vacant, giving
rise to the question of whether an Acting Chief Justice can act in his place. While
this is essentially a Supreme Court concern, the Chief Justice is the ex officio
Chair of the JBC; hence it must be concerned and be properly guided.
4. The appointment of the new Chief Justice has to be made within 90 days from
the time the vacancy occurs, which translates to a deadline of August 15, 2010.
5. The deadline for the appointment is fixed (as it is not reckoned from the date of
submission of the JBC list, as in the lower courts) which means that the JBC
ideally will have to make its list available at the start of the 90-day period so that
its process will not eat up the 90-day period granted the President.
6. After noon of June 30, 2010, the JBC representation from Congress would be
vacant; the current representatives’ mandates to act for their principals extend
only to the end of their present terms; thus, the JBC shall be operating at that
point at less than its full membership.
7. Congress will not convene until the 4th Monday of July, 2010, but would still
need to organize before the two Houses of Congress can send their
representatives to the JBC – a process may extend well into August, 2010.
8. By July 5, 2010, one regular member of the JBC would vacate his post. Filling
up this vacancy requires a presidential appointment and the concurrence of the
Commission on Appointments.
9. Last but not the least, the prohibition in Section 15, Article VII is that "a
President or Acting President shall not make appointments." This prohibition is
expressly addressed to the President and covers the act of appointment; the
prohibition is not against the JBC in the performance of its function of
"recommending appointees to the Judiciary" – an act that is one step away from
the act of making appointments.
17
The Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel
Ancestral Domain, G.R. Nos. 183591, 183791, 183752, 183893, 183951 and 183962, October
14, 2008.
18
By virtue of its power of administrative supervision, the Supreme Court oversees the judges ’
and court personnel’s compliance with the laws, rules and regulations. It may take the proper
administrative action against them if they commit any violation. See Ampong v. CSC, G.R. No.
107910, August 26, 2008, 563 SCRA 293. The Constitution separately provides for the Supreme
Court’s supervision over the JBC. See Article VIII, Section 8 of the CONSTITUTION.
19
Judicial Review is the power of the courts to test the validity of executive and legislative acts for
their conformity with the Constitution, Garcia v. Executive Secretary, G.R. No. 157584, April 2,
2009.
20
Control is the power of an officer to alter or modify or nullify or set aside what a subordinate
officer had done in the performance of his duties and to substitute the judgment of the former for
that of the latter. It is distinguished from supervision in that the latter means overseeing, or the
power or authority of an officer to see that subordinate officers perform their duties, and if the
latter fail or neglect to fulfill them, then the former may take such action or steps as prescribed by
law to make them perform these duties. Nachura, J., Outline Reviewer in Political Law, 2006 ed.,
p. 276.
21
G.R. No. 156052, February 13, 2008, 545 SCRA 92.
22
Supra notes 11 and 14.
23
Philippine Bar Association (PBA), Women Trial Lawyers Organization of the Philippines
(WTLOP), Atty. Amador Z. Tolentino, Atty. Roland B. Inting, Peter Irving Corvera and Alfonso V.
Tan, Jr.
24
See PBA’s Motion for Reconsideration.
25
See the Motions for Reconsideration for PBA, WTLOP, Atty. Amador Z. Tolentino, Atty. Roland
B. Inting, Peter Irving Corvera and Alfonso V. Tan, Jr.
26
CONSTITUTION, Article VII, Section 15:
Two months immediately before the next presidential elections and up to the end of his
term, a President or Acting President shall not make appointments, except temporary
appointments to executive positions when continued vacancies therein will prejudice
public service or endanger public safety.
27
CONSTITUTION, Article VIII, Section 4(1):
(1) The Supreme Court shall be composed of a Chief Justice and fourteen Associate
Justices. It may sit en banc or, in its discretion, in divisions of three, five, or seven
Members. Any vacancy shall be filled within ninety days from the occurrence thereof.
xxxx
28
See Petition on Intervention of WTLOP, as cited in the decision in the above-captioned cases;
see also: PBA’s motion for reconsideration.
29
Francisco v. House of Representatives, G.R. No. 160261, November 10, 2003, 415 SCRA 44,
citing Civil Liberties Union v. Executive Secretary, 194 SCRA 317 (1994); Peralta v. Commission
on Elections, G.R. No. 47771, March 11, 1978, 82 SCRA 30 (1978); Ang-Angco v. Castillo, G.R.
No. 17169, November 30, 1963, 9 SCRA 619 (1963).
30
Macalintal v. Commission on Elections, G.R. No. 157013, July 10, 2003, 310 SCRA 614, citing
Chiongbian v. De Leon, 82 Phil 771 (1949).
31
Article VI for the Legislature, Article VII for the Executive, and Article VIII for the Judiciary.
32
See Matibag v. Benipayo, G.R. No. 149036, April 2, 2002, 380 SCRA 49; where the court
resolved the clash between the power of the President to extend ad interim appointments and the
power of the Commission on Appointments to confirm presidential appointments.
33
Ibid.
34
Supra note 13.
35
Separate Opinion, p. 32.
36
Aytona v. Castillo, G.R. No. 19315, January 19, 1962, 4 SCRA 1.